As U.S. lawsuits seeking gay-marriage rights move toward a likely showdown at the Supreme Court next year, major law firms are rushing to get involved - but only on the side of the proponents.
A Reuters review of more than 100 court filings during the past year shows that at least 30 of the country's largest firms are representing challengers to state laws banning same-sex marriage. Not a single member of the Am Law 200, a commonly used ranking of the largest U.S. firms by revenue, is defending gay marriage prohibitions.
These numbers and interviews with lawyers on both sides suggest that the legal industry has reached its Mozilla moment. The software company's CEO, Brendan Eich, resigned in April after being denounced by gay marriage supporters for a donation he had made in support of California's since-overturned gay marriage ban. Now in a similar vein, attorneys at major law firms are getting the message that if they want to litigate against gay marriage they should do so elsewhere.
Earlier this year Gene Schaerr, a partner at Winston Strawn in Washington, D.C., quit the 850-lawyer firm so he could represent his home state, Utah, in its defense of a ban on same-sex marriage. Schaerr, a Mormon, told colleagues in an email that became public that he was following his "religious and family duty." Schaerr declined to comment, as did a Winston Strawn spokeswoman.
Same-sex marriage is legal in 19 of the 50 U.S. states, and in the District of Columbia. Last June, in the milestone U.S. v. Windsor case, the Supreme Court struck down a federal law defining marriage as between a man and a woman for purposes of federal benefits. Emboldened by that decision, gay and lesbian couples have launched at least 70 lawsuits calling for a broader right, and three cases have been heard by federal appeals courts.
PRO BONO PROGRAMS
In many of the cases, law firms filed friend-of-the-court briefs on behalf of allies including gay-rights groups, law professors and big companies such as Amazon, Google and Starbucks. In some cases, big law firms have made a larger commitment and are representing parties to the litigation. Virtually all are working for free or at cut rates as part of their "pro bono" programs to provide legal services they deem to be in the public interest.
The 850-lawyer firm Akin Gump, for example, sued the state of Texas last year on behalf of two same-sex couples and has filed friend-of-the-court briefs in the appeals cases testing Utah, Oklahoma and Virginia bans. The firm said it has donated at least 1,100 hours so far in the litigation.
States defending gay marriage bans are represented by state government lawyers, but some have also turned to outside counsel. According to the Reuters review, the private attorneys who have signed up to represent states or are backing allied groups with friend-of-the-court briefs are predominantly from religious and conservative organizations, such as the Alliance Defending Freedom and the Beckett Fund, or are from small law firms.
Several lawyers opposed to same-sex marriage rights said they believed big firms would not litigate for that side even if attorneys asked to do so. They pointed to the example of Mozilla's Eich as an example of the pressures being faced.
Andrew Pugno, a lawyer for the group that defended California's ban when it was challenged by same-sex couples, said he considered big firms when searching for someone to argue the case. In at least one situation, Pugno said, a lawyer at a big firm was interested but partners refused to let him take on the work. He declined to identify the person or firm.
"I personally know many good lawyers in large firms who ... are terrified of speaking out even within their own firms," said Pugno, who has a small firm near Sacramento, Calif. He declined to name any.
THE CLEMENT EPISODE
Opponents of gay marriage also referred to Paul Clement, the prominent Washington, D.C., litigator who quit his law firm, King & Spalding, in 2011 after it withdrew as counsel for a congressional group defending the federal law that defined marriage as between a man and woman.
In his resignation letter, which was made public, Clement said he acted "out of the firmly-held belief that representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do." Clement now works at a small firm.
Law firms are also sensitive to an annual "corporate equality" index published by the Human Rights Campaign, a gay rights advocacy group. It awards points for such factors as benefits to same-sex partners and support for gay-marriage litigation, and docks those who oppose it. Most law firms get "100%" ratings, but in its 2011 index Human Rights Campaign rated the 900-lawyer firm Foley & Lardner "85%" and dropped it to "60%" the following year. Explaining its ratings in accompanying literature, the group said Foley & Lardner had chosen to represent "clearly discriminatory clients."
During that period, the firm represented a group, National Organization for Marriage, that challenged the District of Columbia's law allowing gay unions. The case failed, and the representation ended. In its next report, for 2013, the Human Rights Campaign raised the firm's rating to "100%." A Foley & Lardner spokeswoman declined to comment on the episode.
"Fear is a healthy motivator to do the right thing," said Fred Sainz, a spokesman for the Human Rights Campaign. "I'm not suggesting that the other side shouldn't have attorneys. I'm saying we're going to judge those attorneys."
Lawyers at major firms working for gay marriage say they feel a societal obligation. There is a "desire to advance an extremely important equality issue," said Kimberly Parker, chair of the pro bono committee at WilmerHale, a 1000-lawyer firm that filed a friend-of-the-court brief on behalf of a gay-rights advocacy group in the Utah, Oklahoma and Virginia cases.
At WilmerHale, as at many firms, pro bono projects are typically proposed by individual lawyers and then screened primarily for possible conflicts of interest with existing clients.
Some law firms also say their efforts can be good for business, particularly when it comes to relations with corporate clients that have internal policies supporting gay rights, and in efforts to recruit young lawyers.
Theodore Olson, a partner at Gibson Dunn, argued against Virginia's marriage ban in May and has advocated for gay marriage since he and another top litigator, David Boies, challenged California's Proposition 8 in 2009.
Before that, Olson was best known for arguing on behalf of conservatives in major Supreme Court cases such as the one in 2000 that allowed George W. Bush to take the White House and the 2010 decision striking down major campaign-finance regulations in the Citizens United case.
Now, he says, potential recruits see him differently. "I had no idea how popular I would be on law school campuses," he said, adding jokingly: "All of sudden, the monster I was from Bush v. Gore and Citizens United is gone."
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